I. INTRODUCTION
As we approach the tenth anniversary of the attainment of legally binding status for the Charter of Fundamental Rights of the European Union (‘Charter’), it is timely to assess its impact on a core area of EU fundamental rights protection, namely anti-discrimination law. Once the Charter acquired legally binding status in December of 2009, the prohibitions on discrimination provided for in Article 21 of the Charter—which is a ‘particular expression’ of the rule guaranteeing equality before the law under Article 20 of the CharterFootnote 1—might reasonably have been expected to act as a motor for broader, deeper, and firmer enforcement of EU anti-discrimination measures.
Articles 20 and 21 of the Charter have undoubtedly raised the profile of the rights they protect, and in all likelihood thereby enhanced the incidence of their enforceability. However, the broader case law of the Court of Justice of the European Union (‘CJEU’) on the legal effects of the Charter is yet to play a significant role in either the development of prohibitions on discrimination, or the broader principle of equal treatment, beyond the parameters established under secondary EU law. In contrast with other primary measures of EU law, such as Article 157 of the Treaty on the Functioning of the European Union (‘TFEU’), which provides for equal pay for equal work between men and women, Articles 20 and 21 of the Charter have, to date, had a muted impact on the evolution of EU equality law.Footnote 2 This has been particularly evident with respect to the Race Discrimination DirectiveFootnote 3 and the Framework Equality Directive,Footnote 4 which were the measures passed by the EU legislature to combat discrimination beyond the realm of equal treatment between men and women, once it acquired competence to do so under the Amsterdam Treaty in 1999.Footnote 5
Inertia is evidenced first, by rigorous policing by the CJEU of the categories of discrimination that are protected under EU law, with the boundaries set by Article 51(2) of the Charter and Article 6(1) Treaty on European Union (‘TEU’) with respect to EU competence trumping all and every request to safeguard against discriminatory treatment that cannot be fitted into one of the categories listed in Article 21(1) of the Charter.Footnote 6 Second, to the extent to which a right listed in Article 21(1) of the Charter is additionally supported by a principle, as is the case with respect to the prohibition on discrimination on the basis of disability, the CJEU has interpreted the relevant provision—that is Article 26 of the Charter on the integration of persons with disabilities—in such a way that its influence in relevant litigation is light.Footnote 7 Third, it is not uncommon in judgments concerning discriminatory treatment, and which were issued after December 2009, for no reference to be made at all to Articles 20 or 21 of the Charter, despite their status as primary measures of EU law. This may be creating problems in terms of coherence and legal certainty. These developments will be explored in Part II.
In Part III, an analysis will be made of the principal exception to this trend. After a faltering start,Footnote 8 the CJEU has embraced the horizontal enforcement between private parties of fundamental rights protected under the Charter beyond the field of age discrimination,Footnote 9 the substantive field in which horizontal impact of the Charter was pioneered. However, it will be contended that this has been effected in a way that may end up imperilling the effet utile of the new rules created. This case law too is not devoid of difficulties in terms of coherence, thereby casting a shadow over whether it will graft smoothly into the matrix of EU constitutional law, through unqualified support from the courts of the Member States.Footnote 10
Nor are the justifications for the prohibitions encapsulated by Articles 20 and 21 of the Charter easy to understand. With regard to discriminatory treatment and Article 21(1) of the Charter, the distinction between the range of justifications available with respect to direct and indirect discrimination, which is a cornerstone of the Race Discrimination Directive,Footnote 11 and the Framework Equality Directive,Footnote 12 is of no relevance when it is alleged by a litigant that an EU measure itself is discriminatory, or when a Member State is acting outside of the scope of the Race Discrimination Directive or the Framework Equality Directive, but is alleged to be engaging in unlawful discrimination, still within the scope of application of EU law.Footnote 13 In these contexts, irrespective of whether the discrimination is direct or indirect, the justification test provided by Article 52(1) of the Charter applies,Footnote 14 although Article 52(1) bears closer resemblance to the broad justification test applicable under the Race Discrimination DirectiveFootnote 15 and the Framework Equality DirectiveFootnote 16 in the event of indirect discrimination. This seems questionable when direct discrimination is only excusable under the Race Discrimination Directive and the Framework Equality Directive on specifically elaborated grounds,Footnote 17 and in light of the fact that it has long been established in CJEU case law that the ‘protection of the rights which individuals derive from [EU] law cannot vary depending on whether a national authority or a [EU] authority is responsible for the damage’.Footnote 18
With regard to equal treatment under Article 20 of the Charter, coherence is here problematic because the CJEU does not turn to Article 52(1) of the Charter at all in order to decide whether unequal treatment can be justified, but rather refers to the conventional pre-Charter basis of objective justification.Footnote 19 At the same time, there is no explanation in the case law as to why this approach has outlived the attainment by the Charter of legally binding force in December of 2009, including Article 52(1) of the Charter. Why is it that Article 52(1) has not become the standard for assessing whether a limitation on equality before the law Article 20 of the Charter is justifiable? Part IV will therefore explore the issues here described on justification for unequal treatment.
II. SUBSTANTIVE SCOPE OF ARTICLE 21
A. Article 21(1) of the Charter v. Article 51(2) of the Charter: A Case of No Contest?
The text of Article 21(1) states that ‘[A]ny discrimination based on grounds 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 shall be prohibited’,Footnote 20 while Article 21(2) states that ‘[w]ithin the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited’.Footnote 21 The italicized words represent both the hope, and the dashing of it, inherent in Article 21. The use of the words ‘such as’ might have been interpreted as imbuing Article 21 of the Charter with the potential to protect categories of discrimination going beyond those listed in Article 21(1), provided the dispute concerned falls within the scope of application of EU law within the meaning of Article 51(1) of the Charter.Footnote 22
Moreover, Article 14 of the European Convention on Human Rights (‘ECHR’) states that the ‘enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. The second italicized phrase has been interpreted broadly by the European Court of Human Rights, so as to signify ‘a personal characteristic … by which persons or groups of persons are distinguishable from each other’.Footnote 23 In consequence, Article 14 provides a truly non-exhaustive list of grounds of discrimination that can be relied on in the enforcement of rights protected under the ECHR. All that is necessary is for the discriminatory treatment to be based on ‘personal characteristics’ in a very wide senseFootnote 24 before a litigant can rely on the ‘any other status’ element of Article 14.
While the substantive rights protected under Article 21(1) of the Charter are, due to Article 52(3), guaranteed at minimum to the standard set in the case law of the European Court of Human Rights (see further below Part II(C)) the CJEU is not in any way constrained to interpret the words ‘such as’ in Article 21(1) of the Charter in the same way as the European Court of Human Rights has interpreted ‘any other status’ in Article 14 of the ECHR. The EU is not a signatory to the ECHR, and is not likely to become so in the near future.Footnote 25 In consequence, the ECHR remains only a source of inspiration for fundamental rights in the European Union.Footnote 26
Nonetheless, it is striking that the approach of the CJEU to the interpretation of the material scope of Article 21(1) of the Charter has been as restrictive as the case law of the European Court of Human Rights and the material scope of Article 14 has been facilitative. Most notably, the CJEU is yet to adopt an approach pursuant to which an assessment is first made as to whether a substantive provision of EU law applies to a dispute, and then allowing categories of discrimination concerning the application of that provision of EU law to be prohibited going beyond the list in Article 21(1), on the basis of the presence in that provision of the words ‘such as’.Footnote 27 As explained by Advocate General Jääskinen in his Opinion in Case C-354/13 FAO (Kaltoft),Footnote 28 in order to determine whether a Member State is ‘implementing’ EU law under Article 51(1) of the Charter, it is first necessary to identify a provision of EU law other than the Charter that is relevant to the resolution of a dispute. Once identified, can forms of discrimination falling within the parameters of ‘such as’ then be prohibited?
An opportunity might arise for this to be considered, for example, if there were a weight restriction on accessing an EU training grant that discriminated against people who are clinically obese,Footnote 29 or an impediment framed on the basis of membership of a certain socio-professional category. Once a provision of EU law is relevant to a dispute, could it not be argued that opening up the protection of Article 21(1) to categories not listed in Article 21(1) in no way extends the competence of the EU under Article 6(1) TEU and 51(2) of the Charter?Footnote 30 The CJEU has already held that both membership of a socio-professional categoryFootnote 31 and obesityFootnote 32 (on which see further below) are not grounds of discrimination protected under EU law, because they amount to a category of right that is additional to those protected under Article 1 of the Framework Equality Directive. However, this was decided in a context in which no other provision of EU law was relevant to the dispute, aside from the Framework Equality Directive itself. If another provision of EU law is applicable to a dispute, such as one setting up a system of grants, is there any reason why categories of discrimination not listed in Article 21 could not be relied on, given that Article 21(1) employs the words ‘such as’? This approach would also be consistent with cases concerned with equal treatment, as protected under Article 20 of the Charter, in which a litigant seeks to argue that they have been treated differently from someone in comparable circumstances. The first step in such litigation is identification of the relevant provision of EU law.Footnote 33 It would also be in step with the important development (discussed below in Parts II(C) and IV) in Case C-528/13 Léger,Footnote 34 in which the CJEU established that Member State laws implementing EU directives are to comply with the categories protected under Article 21(1), even in disputes falling outside of the scope of Race Discrimination Directive and the Framework Equality Directive, subject to objective justification pursuant to Article 52(1) of the Charter.
However, other threads in the case law of the CJEU to date may not be sufficiently open-ended for the law to develop in this direction. On the facts presented to it thus far, the CJEU has rather focused first on whether other substantive provisions of EU law already protect the category of right being invoked in determining whether it is protected by Article 21(1) of the Charter.Footnote 35 Thus, Case C-5/12 Marc Betriu Montull v INSS Footnote 36 concerned paternity leave rights under the combined effects of Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions,Footnote 37 and Directive 92/85 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.Footnote 38 It concerned whether Spanish law on paternity leave was compatible with the obligations derived from these directives. The CJEU held, in the light of the Opinion of the Advocate General,Footnote 39 that ‘at the time of the facts in the main proceedings, there was no prohibition in the EC Treaty, in any European Union directive or on any other provision of European Union law of discrimination between the adoptive father and the biological father in relation to maternity leave’.Footnote 40 Such a right did not therefore form a feature of EU law.
In Case C-354/13 FOA (Kaltoft), the CJEU held, again in the light of the Opinion of the Advocate General,Footnote 41 that there was no general principle of EU law on non-discrimination on the grounds of obesity as regards employment and occupation to protect a worker like Mr Kaltoft who had allegedly been dismissed on this basis. The CJEU held that no primary rule of EU lawFootnote 42 or secondary legislationFootnote 43 lays down such a rule, and in particular Directive 2000/78 did not mention obesity as a ground of discrimination.Footnote 44 According to the settled case law, ‘the scope of Directive 2000/78 should not be extended by analogy beyond the discrimination based on the grounds listed exhaustively in Article 1 thereof … obesity cannot as such be regarded as a ground in addition to those in relation to which Directive 2000/78 prohibits discrimination’.Footnote 45 Advocate General Jääskinen took the view that Article 51(2) of the Charter and Article 6(1) TEU ‘set an outer-boundary’ to EU fundamental rights lawFootnote 46 which precluded the interpretation of EU law advocated by Mr Kaltoft.
Further, the Opinion of the Advocate General and the ruling of the CJEU in Case C-668/15, Jyske Finans A/S might be viewed as attenuating the material scope of Article 21(1) of the Charter, when compared with prior relevant rulings of the CJEU (see further below Part II(C)).Footnote 47 Even though Article 21(1) of the Charter expressly precludes discrimination on the basis of birth, neither the Advocate General nor the CJEU viewed this as relevant in interpreting the meaning of ‘ethnic origin’ under Article 1 of the Race Discrimination Directive, the hierarchy of norms between primary and secondary EU law notwithstanding. Advocate General Wahl rather viewed Article 21(1), and its specific reference to a prohibition on discrimination on the basis of birth, as justifying a restrictive interpretation of the term ‘ethnic origin’ in Article 1 of the Race Discrimination Directive. He stated that ‘that separate enumeration merely reinforces the idea that the concepts of “ethnic origin” and “birth” differ’.Footnote 48
Thus, the emphasis in the case law to date has been on whether the basis of discrimination relied on has already been protected by either EU legislative measures or primary EU law. This may have rendered the words ‘such as’ in Article 21(1) of the Charter devoid of any jurisprudential effect in the absence of such measures.
B. The Role of Principles Supporting an Article 21(1) Non-discrimination Right
The extent to which the presence of a principle in the Charter can reinforce the enforcement of a Charter right arose for consideration in Case C-356/12 Glatzel.Footnote 49 Mr Glatzel, who was denied a driver’s license in the category of heavy vehicles due to vision problems, challenged the validity of the relevant part of Directive 2006/126 on driving licenses.Footnote 50 The Fifth Chamber of the CJEU held that the order for reference required it to determine (1) whether the EU legislator infringed, in the relevant part of Directive 2006/126, the prohibition on discrimination on the basis of disability in Article 21(1) of the Charter, including the possible effects of the UN Convention on Disabilities;Footnote 51 (2) whether Article 26 of the Charter, which enshrines the principle of integration of persons with disabilities, precluded the provision impugned for invalidity; and (3) whether it was contrary to Article 20 of the Charter, according to which everyone is equal before the law, that drivers of certain heavy goods vehicles do not have the opportunity to show, by means of individual medical examination, that they are fit to drive such vehicles, even in the absence of certain physical capacities required by Directive 2006/126, whereas other drivers of certain other types of vehicles have such a possibility.Footnote 52
The CJEU ruled that it was not necessary to decide whether Mr Glatzel suffered from a ‘disability’ under Article 21(1) of the Charter, because the difference in treatment consisting of not issuing him with a driver’s license with respect to certain categories of vehicles on the ground that his visual acuity is insufficient could be objectively justified in the light of overriding considerations of road safety.Footnote 53 With regard to Article 26 of the Charter, which states that the Union is to recognize and respect 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, the CJEU acknowledged that Article 26 was relevant because Directive 2006/16 was a legislative act of the Union implementing the principle contained in Article 26 and intended to be applied in the proceedings before it.Footnote 54 The CJEU held it was ‘clear in particular from the wording of Recital 14 in the preamble thereto that “[s]pecific provisions should be adopted to make it easier for physically disabled persons to drive vehicles”’. Likewise, Article 5(2) of that directive refers to the conditions for the issue of driving licences to drivers with disabilities, in particular as regards the authorisation to drive adapted vehicles.’Footnote 55
However, the CJEU nonetheless reached the conclusion that Article 26 of the Charter did not require the EU legislature to adopt any specific measure. In order for that article to be fully effective, the CJEU held, it must be given more specific expression in European Union or national law. Accordingly, Article 26 of the Charter cannot itself confer on individuals a subjective right which they may invoke as such.Footnote 56 The reasoning of the CJEU on the pertinence of Article 26 of the Charter to the proceedings is fuller than that of the Advocate General, who undertook no analysis of Article 26 of the Charter, but the judgment is still brief on this point. In deciding that Article 26 applied to the main proceedings, the CJEU held it was clear from Article 52(5) and (7) of the Charter, on the legal effect of the explanations to the Charter that, ‘reliance on Article 26 thereof before the Court is allowed for the interpretation and review of the legality of legislative acts of the European Union which implement the principle laid down in that article, namely the integration of persons with disabilities’.Footnote 57
Yet Article 26 did not feature in any of the CJEU’s reasoning on objective justification; an area in which Article 26 might have been expected to bite on the facts of the case. Article 26 was potentially pertinent in the context of proportionality review.Footnote 58 Was preclusion from driving heavy vehicles impeding Mr Glatzel’s occupational integration, and how onerous were the consequences for him if it did? Given that consideration of objective justification was part of the interpretation made by the CJEU of the pertinent provisions of Directive 2006/16, the absence of reference to Article 26 in undertaking proportionality review is difficult to understand, particularly when the national referring court expressed doubts, after the taking of expert evidence, as to whether the relevant provision of Directive 2006/16 was appropriately adapted to achieving its goal.Footnote 59
The ruling of the CJEU in Glatzel on the impact of Article 26 of the Charter on disputes concerned with disability discrimination and equal treatment minimizes the provision’s role by placing fuller emphasis on the absence of further legislative measures that might be taken with respect to Article 26 but which had not yet occurred. This arguably diminished the impact in law Article 26 of the Charter might otherwise have had.Footnote 60 With regard to Article 20 of the Charter, it was held that Glatzel was not in a comparable position to drivers of certain categories of vehicles who did have the opportunity to show, by means of individual medical examination, that they were fit to drive such vehicles even in the absence of certain physical capacities.Footnote 61 The reasoning of the Advocate General was similar.Footnote 62
One commentator has argued that, in comparison with the Race Discrimination Directive and the Framework Equality Directive, ‘a general principle of equal treatment grants a much lower of level of protection. It only “requires that similar situations shall not be treated differently unless different treatment is objectively justified”. This means that policymakers and also economic actors can justify any different treatment on any ground as long as they find a good reason, and the differentiation is proportionate to that reason’.Footnote 63 The Glatzel case therefore represents a lost opportunity to explore the differences in the protection afforded by the Framework Equality Directive and the general principle of equal treatment.Footnote 64
C. Absence of Reference to the Charter in Disputes Concerning Discrimination and/or Unequal Treatment—Why Does It Matter?
Not infrequently Articles 20 and 21 of the Charter do not rate a mention in CJEU judgments concerning the Race Discrimination Directive, the Framework Equality Directive, and the general principle of equal treatment.Footnote 65 This occurs across the fields of race and ethnic origin,Footnote 66 religious belief,Footnote 67 disability,Footnote 68 sexFootnote 69 and sexual orientation,Footnote 70 and age discrimination.Footnote 71 It can even happen when a national referring court has sent a question concerning Article 21 of the Charter.Footnote 72 The practice of omitting references to primary law in the form of the Charter has been particularly pronounced in the field of sexual orientation discrimination.Footnote 73
On its face, this might seem to be of no consequence. After all, an omission of a reference to the provisions of the Charter underpinning the right in issue may not be relevant because the problem at hand is easily resolvable by reference to the relevant directives, particularly in a highly evolved field, in terms of volume of legislation, such as discrimination on the basis of sex.Footnote 74 Or indeed, a fundamental rights remedy may have been achieved via an alternative route, such as reliance on EU citizenship rules.Footnote 75 However, Articles 20 and 21 of the Charter are provisions of EU primary law, and absence of full consideration of the pertinence of the Charter in a dispute concerning discriminatory treatment can mean that legal principles relevant to the resolution of the dispute end up either not being fully ventilated or entirely overlooked. This is exemplified by comparing the judgment of the Grand Chamber of the CJEU in C-83/14 CHEZ Footnote 76 with that of the First Chamber in C-668/15 Jyske Finans A/S,Footnote 77 both of which were preceded by Case C-54/07 Firma Feryn,Footnote 78 the first ruling in which the CJEU interpreted the substance of the Race Discrimination Directive.
The Race Discrimination Directive has the widest material scope of all equality Directives, encompassing, pursuant to Article 3(1), employment and self-employment, social protection including health care, housing and access to supply of other goods and services that are available to the public, education, and vocational training. It also had fewer exceptions as compared with discrimination on the basis of sex, disability, sexual orientation, religion, or age.Footnote 79 Yet it has been the subject of strikingly few references for preliminary rulings.Footnote 80 Only nine have been adjudicated upon to date,Footnote 81 and only three of these featured facts warranting interpretation and detailed analysis of the Race Discrimination Directive.Footnote 82
Case C-54/07 Firma Feryn,Footnote 83 on racially discriminatory recruitment policies, made no reference to Article 21(1) of the Charter, probably because at that stage the Charter had not acquired legally binding status. In any event, a robust judgment was issued setting out broad parameters for identification of incidences of direct discrimination, the presumption of the existence of a discriminatory policy and the sanctions applicable when the Race Discrimination Directive is breached. Advocate General Maduro commenced his Opinion by noting that contrary to ‘conventional wisdom, words can hurt. But can they amount to discrimination?’ The Advocate General then went on to consider whether the director of a firm which placed a ‘vacancies’ notice on its premises seeking new staff—reported in several newspapers, but disputed by the director himself, as having said the firm would not recruit persons of Moroccan origin due to customer preferences—had placed the firm in breach of the Race Discrimination Directive.
The Belgian Centrum voor Gelijkheid van Kansen en voor Racismebestrijding (Centre for Equal Opportunities and Opposition to Racism) brought proceedings against Feryn before the President of the Arbeidsrechtbank Brussels which were unsuccessful. It was there found that the public statements were only evidence of potential discrimination and not actual discrimination, such as turning down a job application on the basis of ethnic origin. The Centre for equal opportunities and opposition to racism appealed to the Arbreidshof te Brussels, which sent a reference for a preliminary ruling to the CJEU.
Advocate General Maduro first dealt with whether or not the Race Discrimination Directive left Member States with a discretion to allow organisations like the Centre for Equal Opportunities to bring proceedings against entities like Feryn NV, or whether such proceedings could only be brought by victims. In concluding that such a discretion existed, the Advocate General referred, inter alia, to Article 6(2) of the Race Discrimination Directive, which states that the ‘implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by this Directive’.Footnote 84 Advocate General Maduro took the position that the scope of the Directive was not confined to cases in which there were ‘identifiable victim complaints’, and that the ‘forms of discrimination covered by the [Race Discrimination] Directive must be inferred, above all, from its wording and purpose’,Footnote 85 and that directives passed on the basis of Article 13 EC (now Article 19 TFEU) were to be interpreted ‘in the light of the broader values underlying that provision’.Footnote 86 Against this background, the Advocate General concluded that ‘an interpretation that would limit the scope of the Directive to cases of identifiable complainants who have applied for a particular job would risk undermining the effectiveness of the principle of equal treatment’.Footnote 87 All of this was adopted by the Second Chamber of the CJEU,Footnote 88 which found, among other things, on the further recommendation of Advocate General Maduro, that public statements of the kind in issue in Feryn constituted direct discrimination under Article 2(2)(a) of the Race Discrimination Directive.
Case C-83/14 CHEZ,Footnote 89 concerned a practice by the supplier of an essential service (electricity) in a Bulgarian town that was alleged to have been discriminatory against Roma. Mrs Nikolova ran a shop in the relevant district and was affected by the policy, but was not of Roma origin herself. She brought a claim to the Komisia za zashtita ot diskriminatsia (Commission for Protection Against Discrimination) arguing that the practice of installing electricity meters for all consumers of her district at a height of between six and seven metres on concrete pylons, when the metres installed by CHEZ in other districts were placed at a height of 1.70 metres, constituted direct discrimination on the basis of nationality. The Commission for Protection Against Discrimination issued a decision concluding that indirect discrimination had occurred, but this was annulled by the Supreme Administrative Court. Eleven days later, the Commission for Protection Against Discrimination issued a fresh decision to the effect that indirect discrimination had taken place, which was appealed to the Administrative Court, Sofia. It sent a series of questions to the CJEU, including one on the meaning of ‘ethnic origin’, and which further allowed for exploration of the difference between direct discrimination under Article 2(2)(a) of the Race Discrimination Directive and indirect discrimination under Article 2(2)(b) of the Race Discrimination Directive.
Article 21(1) of the Charter was a prominent feature of both the judgment of the Grand Chamber of the CJEU and the Opinion of Advocate General Kokott, both of which were also preoccupied with the effet utile of the principle of equal treatment, the purposes underlying the Race Discrimination Directive, and potential for the measure or practice impugned to stigmatize on the basis of race. The Advocate General noted the status of Article 21 of the Charter as primary EU law.Footnote 90 She relied on Article 21 in determining the meaning of ‘racial or ethnic origin’;Footnote 91 in the formulation of her proposals with respect to discrimination by association (which was relevant under the facts arising in CHEZ);Footnote 92 in deciding whether a practice needs to be ethnically motivated to amount to discrimination based on racial or ethnic origin;Footnote 93 and in reaching conclusions as to when a practice is indirectly discriminatory under the Charter,Footnote 94 which she considered to be the case in CHEZ. Like the Second Chamber of the CJEU and Advocate General Maduro in Firma Freyn,Footnote 95 Advocate General Kokott adopted an approach that tended toward a broad material scope for the Race Discrimination Directive, pointing out for example that neither Article 21(1) of the Charter nor the various language versions of the Race Discrimination Directive restricted the application of the principle of equal treatment to persons who suffer discrimination on the basis of ‘their own’ ethnic origin.Footnote 96 The Advocate General took the view that this wording was not by chance, and referred to the judgment of the CJEU in Case C-391/09 Runevic-Vardyn and Wardyn Footnote 97 in support of the contention that the prohibition on discrimination based on race or ethnic origin cannot be interpreted restrictively.Footnote 98 For discrimination to occur, it was ‘sufficient that a person or group of persons is treated less favourably than another is, has been, or would be treated’,Footnote 99 with the Advocate General noting that, pursuant to Recital 28 of the Race Discrimination Directive, its objective is to ‘ensure protection against discrimination as effectively as possible and to achieve the highest possible level of protection’.Footnote 100
The Grand Chamber of the CJEU held that the Race Discrimination Directive is merely an expression of the principle of equality, which is one of the general principles of EU law recognized in Article 21 of the Charter. As such, the Race Discrimination Directive cannot be interpreted restrictively;Footnote 101 that the first question appertained to the meaning of ‘ethnic origin’ within the meaning of Directive 2000/43 and Article 21 of the Charter, such that Articles 1 and 2(1) of the Race Discrimination Directive were to be read ‘in conjunction with Article 21 of the Charter’;Footnote 102 and that, in accordance with the Opinion of the Advocate General, the Race Discrimination Directive gives specific expression to the principle of non-discrimination on the grounds of race and ethnic origin in the substantive field that the Directive covers.Footnote 103 The Grand Chamber of the CJEU concluded, while also providing guidance, that it was for the national referring court to decide whether direct discrimination had occurred,Footnote 104 including the question of objective justification in the event of indirect discrimination having occurred.Footnote 105 The Grand Chamber placed emphasis on Recital 12 of the Race Discrimination Directive, and the need to ‘ensure the development of democratic and tolerant societies which allow the participation of all persons irrespective of racial or ethnic origin’.Footnote 106 The Grand Chamber confirmed that the scope of the Race Discrimination Directive cannot be defined restrictively,Footnote 107 and referred to Recital 16 of the Race Discrimination Directive and Article 3(1), ‘according to which the protection against discrimination on grounds of racial or ethnic origin which the directive is designed to guarantee is to benefit “all” persons’.Footnote 108
Finally, when the wording of the Race Discrimination Directive did not resolve the question of whether discrimination by association fell within the material scope of the Race Discrimination Directive, the Grand Chamber of the CJEU—in finding that it did—reverted to its classic rules of interpretation and considered the context, purpose and general aim of the Race Discrimination Directive.Footnote 109 What mattered, ultimately, was that the law impugned adversely affected the Roma ethnic group;Footnote 110 the fact that Mrs Nikolova was not part of that group did not put the dispute outside of the scope ratione materiae of the Race Discrimination Directive.
Not much of this was taken up by either the Advocate General or the First Chamber of the CJEU in C-668/15 Jyske Finans A/S.Footnote 111 One commentator has argued Jyske Finans A/S ‘subverts the strides made in Feryn and CHEZ’,Footnote 112 and the judgment features no reference to Article 21 of the Charter, or the hierarchy of norms in EU law. Advocate General Wahl, as noted above, made only a passing acknowledgment of Article 21, and then in order to justify a restrictive interpretation of the term ‘ethnic origin’.
In Jyske Finans A/S, Mr Ismar Huskic—a Danish national who had been born in Bosnia and Herzegovina and subsequently naturalized—was asked by a credit institution to provide additional proof of his identity, aside from a Danish driver’s license, when applying with his Danish born partner for a car loan. The credit institution argued that a Danish driver’s license was sufficient identification for Mr Huskic’s partner, but not him, because it was simply complying with laws to prevent money laundering when requesting an additional identity check. These checks were said to be imposed by Article 13 of Directive 2005/60 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing.Footnote 113
Mr Huskic won a claim for discrimination before the Equal Treatment Board and before the District Court of Viborg in Denmark after the decision of the Equal Treatment Board was appealed by Jyske Finance. On further appeal by Jyske Finance to the High Court of Western Denmark, questions were referred to the CJEU on whether a practice that required only persons born outside of Nordic countries, the EU and Switzerland and Lichtenstein, to produce identification was excluded by either the prohibition on direct discrimination under Article 2(2)(a) of the Race Discrimination Directive, indirect discrimination under Article 2(2)(b) of the Race Discrimination Directive (unless objectively justified by a legitimate aim and proportionate) and whether, if indirectly discriminatory, the practice was an appropriate and necessary means of safeguarding the enhanced customer due diligence requirements of Directive 2005/60.
In a pithy judgment, the First Chamber of the CJEU held that Mr Huskic had not been discriminated against either directly or indirectly, and for that reason it was not necessary to answer the third question on Article 13 of Directive 2005/60 on money laundering. Both the Advocate General and the CJEU were directly critical of the reasoning of the District Court of Viborg, who had found in favour of Mr Huskic. The judgment of the CJEU and the Opinion of the Advocate General are perplexing for several further reasons. First, the practical consequence of the decision of the High Court of Western Denmark to send the order for reference was removal of a fundamental rights remedy that had been afforded to Mr Huskic under Danish law, both before the Equal Treatment Tribunal and the District Court of Viborg. If referral to the CJEU results in loss of a fundamental rights remedy already provided under Member State law, comprehensive reasoning might be expected for so doing, given that, under the rule established in the Melloni case,Footnote 114 the national referring court is precluded from applying higher national standards for the protection of discrimination on the basis of ethnic origin, if to do so results in diminution of the primacy, unity, and effectiveness of EU law.Footnote 115 Neither this consequence, nor a provision of the Race Discrimination Directive related to it, and which, as noted above, had been viewed as important by Advocate General Maduro in Firma Feryn, were considered by the Advocate General or the First Chamber of the CJEU. Article 6(2) of the Race Discrimination Directive, states that the ‘implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by this Directive’.Footnote 116
Second, and unusually, there was a preoccupation in Jyske Finans—commenced in the Opinion of the Advocate General,Footnote 117 then adopted by the First Chamber of the CJEUFootnote 118—with criticising the reasoning of the District Court, Viborg, rather than interpreting the parts of the Race Discrimination Directive on which questions were referred by the Court of Appeal of Western Denmark. This meant that the premise on which the Opinion was based, and then adopted by the First Chamber of the Court, was that place of birth was the only criterion that led the domestic authorities to find discrimination grounded in ethnic origin.Footnote 119
Third, the approach taken to the resolution of the dispute by the Advocate General in Jyske Finans, and followed down the line by the CJEU, opened up loopholes for evasion of the Race Discrimination Directive as interpreted in previous CJEU case law. For example, the preoccupation of both the CJEUFootnote 120 and the Advocate General with identification of a particular ethnic group that has suffered discrimination before the Race Discrimination Directive can bite, and which does not appear in the wording of Article 2 of the Race Discrimination Directive itself, is inconsistent with the parameters set in CHEZ Footnote 121 and Feryn, detailed above, in which the Directive was afforded a broad scope ratione materiae.
What Article 2(2)(b) of the Race Discrimination requires is ‘particular disadvantage’ (my emphasis) before indirect discrimination can occur, the text of Article 2(2)(b) does not refer to disadvantage of a ‘particular’ ethnic group. Indeed, the wording of Article 2(2)(b) suggests the contrary. It refers to ‘persons of a racial or ethnic origin’, rather than persons of an identifiable ethnic origin.Footnote 122 In Article 2(a) on direct discrimination, the emphasis is on unequal treatment being ‘on grounds’Footnote 123 of racial or ethnic origin (causative) but again makes no reference to identification of a ‘particular’ ethnic group.
In light of the approach employed by the Grand Chamber of the CJEU in CHEZ, and its preoccupation with securing the effet utile of the Race Discrimination Directive, it is difficult to understand the basis upon which the Advocate General was able to insert the bracketed word ‘certain’ in front of ‘ethnic origin’, when quoting from the judgment of the Grand Chamber in CHEZ. The paragraph relied on in CHEZ refers to possession by the person concerned of a protected characteristic as a touchstone for determining whether indirect discrimination has occurred.Footnote 124 It does not discuss identification of a ‘certain’ or ‘particular’ ethnic group. Precise identification of a group effect by a neutral practice was relevant in CHEZ due to its special facts. The applicant was not a member of any disadvantaged group, but was affected by the impugned practice. This is the context in which, it would seem, the ruling in CHEZ needs to be read,Footnote 125 and the scant references in that judgment to a ‘particular’ or ‘certain’ ethnic origin.Footnote 126
The Opinion of the Advocate General and the judgment of the First Chamber in Jyske Finans diminishes the impact of a measure that is neutral on its face as the touchstone for determining whether indirect discrimination has occurred; an approach that is so ingrained in the case law of the CJEU that it might be viewed as having constitutional status. Advocate General Wahl asserted, with reliance on a passage on the Opinion of Advocate General Kokott in CHEZ,Footnote 127 that ‘the practical effect of the practice at issue does not suffice to establish an instance of direct discrimination’.Footnote 128 Does this miss the point that an impact analysis is generally applied to indirect discrimination? The absence of any forensic investigation of impacts is also dissonant with the breadth of the concept, inherent in indirect discrimination law, of protected groups, such as women (roughly half the planet), and the fact that protected groups can also be ephemeral, such as minorities.Footnote 129 It is additionally difficult to reconcile with Recital 12 of the Race Discrimination Directive, which shows that its goal is to ‘ensure the development of democratic and tolerant societies which allow the participation of all persons irrespective of racial or ethnic origin’.
Thus, even if the measure impugned in Jyske Finans was not directly discriminatory under Article 2(2)(a) of the Race Discrimination Directive, the following question might well have been asked. Does not the practical application of the law in question adversely impact persons who are not ethnically Danish to a greater degree than persons who are? Footnote 130 As one leading commentary has observed, ‘broadly speaking, indirect discrimination occurs where an unjustified adverse impact is produced for a protected class of persons by an apparently class-neutral action’.Footnote 131 It is questionable whether emphasizing identification of the relevant group at the expense of the impact of the measure impugned is consistent with the objectives of the Race Discrimination Directive in combatting xenophobia,Footnote 132 and misses the moral wrong that underlies the law of discrimination, and indeed the Charter itselfFootnote 133—namely lack of respect for dignity, equality, and equal respect.Footnote 134
The potential for evasion of the Race Discrimination Directive is exacerbated by the fact that the First Chamber of the CJEU did not specifically address the other side of the coin to disadvantage grounded on ethnic origin. That is, unjustified advantage.Footnote 135 On the analysis of the Advocate General, as adopted by the First Chamber of the CJEU, an undertaking that states that it will employ only persons having a neutral quality that advantages, rather than disadvantages, a particular ethnic group (eg the ability so speak the Swedish language) will fall outside of the scope ratione materiae of the Race Discrimination Directive. This is so because, in such circumstances, the particular ethnic groups suffering disadvantage will be impossible to identify, even though identification of the advantaged group is straightforward. Does not a rule or practice applicable to persons born in Denmark overwhelmingly, in its impact, advantage persons of Danish ethnicity, in the same way as discrimination in CHEZ on the basis of residence overwhelmingly disadvantaged Roma? Yet the Advocate General expressed the view that Article 2(2)(b) of the Race Discrimination Directive ‘cannot be understood to confer (negative) protection against measures which arguably place a given ethnic group at an advantage, without also identifying a specific ethnic origin which is put at a disadvantage.’Footnote 136
Granted, discrimination on the basis of birth is one of the prohibitions mentioned in Article 21(1) of the Charter that is not expressly referred to in either the Race Discrimination Directive or the Equal Treatment Framework Directive. In this sense, it is in the company of ‘colour’, ‘social origin’, ‘genetic features’, ‘language’, ‘political or any other opinion’, ‘membership of a national minority’, and ‘property’. However, once established rules for the interpretation of EU laws are applied to the Race Discrimination Directive, an approach that was employed by the Grand Chamber of the CJEU in CHEZ, is there any basis on which it can be inferred that ‘ethnic origin’ is to be interpreted in such a way as to facilitate the exclusion, as opposed to the inclusion, of those falling within these categories of Article 21(1) of the Charter from the protection afforded by discrimination on the basis of ethnic origin under the Race Discrimination Directive?
Fourth, exploration of the consequences of removing a remedy that had been afforded by a Member State court (here the District Court of Viborg) in terms of whether or not Mr Huskic might seek redress against Denmark before the European Court of Human Rights, was not a strong feature of the reasoning elaborated in Jyske Finans. Such an exercise might have been warranted due to Article 52(3) of the Charter, which states that in respect of rights under the Charter that correspond to rights under the ECHR, ‘the meaning and scope of those rights shall be the same’. In any subsequent claim brought by Mr Huskic before the European Court of Human Rights, there will be a ‘presumption’ that he was afforded ‘equivalent protection’ before the CJEU, but it is rebuttable.Footnote 137 Best practice, then, would seem to suggest that any potential Strasbourg angle is comprehensively explored by the CJEU, before a fundamental rights ‘win’ before a Member State court is removed by a judgment issued in the context of an order for reference.
However, this formed no part of the reasoning of the First Chamber of the CJEU.Footnote 138 Advocate General Wahl dealt with this aspect of the case as follows.
That view [the need for specific comparability between particular ethnic groups] is not called into question by an argument, relied on by the Kingdom of Denmark at the hearing, that the [European Court of Human Rights] has recently held, by a majority, that national rules on family reunion which generally affect persons of ‘foreign ethnic origin’ unfavourably are in breach of Article 8 of the European Convention on Human Rights, read in conjunction with Article 14 thereof. That case concerned a difference in treatment of a State’s own citizens based on the duration of their citizenship, and therefore a matter in respect of which Directive 2000/43 affords no greater protection than as concerns a person’s place of birth. Moreover, whereas the wording of those convention provisions—in particular Article 14—does not suggest that it is necessary to identify a particular ethnic origin targeted by a discriminatory measure, that is not the case for Article 2(2)(b) of Directive 2000/43.Footnote 139
This succinct reasoning seems to suggest that the European Union is authorized under the treaties to ‘legislate over’ fundamental rights standards established under the ECHR, as interpreted by the European Court of Human Rights, so as to diminish the protection afforded under that instrument. This would not, however, be consistent with the Court’s interpretation of Article 52(3) of the Charter to date. EU law can provide only higher, and not lower, protection than the law of the ECHR.Footnote 140
Finally, and perhaps most importantly, neither the Advocate General nor the First Chamber of the CJEU considered an additional and important dimension to the dispute in Jyske Finans. The defendant argued in that case that it was bound by Article 13 of Directive 2005/60 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financingFootnote 141 to impose further identification requirements on Mr Huskic. But does not Article 21(1) of the Charter require interpretation of Directive 2005/60, and Member State measures implementing it, in conformity with the prohibition on discrimination on the basis of birth, irrespective the Race Discrimination Directive, in the same way as the CJEU reviewed Member State compliance with the prohibition on discrimination on the basis of sexual orientation under Article 21(1) of the Charter when a Member State was implementing an EU Directive on technical requirements relating to blood and blood components in C-528/13 Leger, subject only to objective justification as provided by Article 52(1) of the Charter?Footnote 142 This question was left unaddressed in Jyske Finans, even though Recital 48 of Directive 2005/60 statedFootnote 143 that this Directive ‘respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. Nothing in this Directive should be interpreted or implemented in a manner that is inconsistent with the European Convention on Human Rights’.
The First Chamber of the CJEU therefore concluded that Article 2(2)(a) and (b) of Directive 2000/43 was to be interpreted as not precluding the practice of a credit institution which requires a customer whose driving license indicates a country of birth other than a Member State of the European Union or the European Free Trade Association to produce additional identification in the form of a copy of the customer’s passport or residence permit.Footnote 144 Advocate General Wahl added that, if question 3 had to be answered, at which point I note the stigmatizing effects of the law might have been further explored, he would have advised the CJEU to rule that the practice of Jyske Finans of requiring additional documentation due to place of birth was neither objectively justified or necessary to prevent the financing of terrorism or money laundering.
III. HORIZONTAL APPLICATION OF THE CHARTER AND COHERENCE
While both the Race Discrimination Directive and the Framework Equal Treatment Directive have been subject to interpretation in disputes involving private parties inter se,Footnote 145 the CJEU recently took this case law further by finding that, if it is impossible to interpret a provision of Member State law in conformity with the Framework Equality Directive, both Article 47 of the Charter and Article 21(1) of the Charter become fully applicable, notwithstanding the prohibition on horizontal direct effect of directives.Footnote 146
In Case C-414/16 Egenberger,Footnote 147 the applicant applied unsuccessfully for a post with an organization of protestant churches in Germany, entailing preparation of a race discrimination report. The advertisement for the post stated that it was open only to specified groups of Christians. The applicant complained that, as an atheist, she had been discriminated against on the basis of her belief, and queried the compliance of German rules of constitutional law restricting judicial review of decisions of religious organisations with Article 47 of the Charter on the prohibition on discrimination based on religion or belief. The defendant argued that they were entitled in law not to entertain an application from an atheist due to their right to autonomy in the expression of their religion, and, in so far as this was protected by German law, it was preserved by Article 17 TFEU on the status of churches and other religious organizations. Interestingly, both parties relied on the right to freedom of religion and belief under Article 21 of the Charter. The case otherwise largely concerned interpretation of the Framework Equality Directive, and the circumstances in which religion or belief is a ‘genuine and determining’ occupational requirement under Article 4 of the Framework Equality Directive, thereby allowing a difference of treatment.
But perhaps most importantly for present purposes, the national court sent a specific question on the consequences arising if it was impossible to interpret Member State law in conformity with Article 4 of the Framework Equality Directive. On this point the Grand Chamber of the CJEU held as follows:
[I]t must be pointed out that, like Article 21 of the Charter, Article 47 of the Charter on the right to effective judicial protection is sufficient in itself and does not need to be made more specific by provisions of EU or national law to confer on individuals a right which they may rely on as such.
Consequently, in the situation mentioned in paragraph 75 above, [if it is impossible to interpret Member State law in conformity with the Directive,] the national court would be required to ensure within its jurisdiction the judicial protection for individuals flowing from Articles 21 and 47 of the Charter, and to guarantee the full effectiveness of those articles by disapplying if need be any contrary provision of national law.
That conclusion is not called into question by the fact that a court may, in a dispute between individuals, be called on to balance competing fundamental rights which the parties to the dispute derive from the provisions of the FEU Treaty or the Charter, and may even be obliged, in the review that it must carry out, to make sure that the principle of proportionality is complied with. Such an obligation to strike a balance between the various interests involved has no effect on the possibility of relying on the rights in question in such a dispute. …
Further, where the national court is called on to ensure that Articles 21 and 47 of the Charter are observed, while possibly balancing the various interests involved, such as respect for the status of churches as laid down in Article 17 TFEU, it will have to take into consideration the balance struck between those interests by the EU legislature in Directive 2000/78, in order to determine the obligations deriving from the Charter in circumstances such as those at issue in the main proceedings.Footnote 148
The CJEU thereby extended the horizontal effect of Charter rights from the foundational area of age discrimination under Article 21(1) of the Charter, to freedom of religion and belief under Article 21(1) of the Charter and to the right to an effective remedy and a fair trial under Article 47, even though the Mangold Footnote 149 line of case law on age discrimination has been described as ‘one of the most criticized lines of case law in the Court’s recent history’.Footnote 150 Here only a few remarks will be made, and all are concerned with the theme of coherency.
As already noted, the defendant relied on its right as a religious organization to autonomy as protected under Article 9 of the ECHR and Article 21(1) of the Charter (as an element of freedom of religion) and the applicant her right to freedom of belief under Article 9 ECHR and Article 21(1). It remains to be seen how easy it will be for national courts to undertake the balancing exercise set down by the Grand Chamber of the CJEU in its ruling in Egenberger, when what is being balanced is different components of the same right. In addition to this, the absence of discussion of where the subsisting prohibition on the horizontal direct effect of directivesFootnote 151 fits in with the horizontal enforcement of freedom of religion under Article 21(1) of the Charter and the right to an effective remedy and to a fair trial under Article 47 of the Charter was also unfortunate in terms of coherency. Egenberger represented a lost opportunity to gather up and reconcile these distinct but related threads in the CJEU’s case law.Footnote 152
Finally, one Advocate General has recently explored in detail the challenges associated with conferring rights protected under the Charter with horizontal direct effect. Advocate General Bobek in his Opinion in Case C-193/17 Cresco Investigation GmBH has examined the problems that can arise in identifying the appropriate comparators in horizontal cases involving discriminatory treatment.Footnote 153 He has underscored the difference between disputes in which a private sector actor treats like cases differently of their own volition, and when differential treatment results from a direct application of a positive law of a Member State. The Advocate General also queries whether, in the latter type of case, the case law of the CJEU has ever actively required an effective remedy from a private sector actor engaged in unlawful discrimination,Footnote 154 and concludes in favour of a remedy in state liability for damages. The judgment of the CJEU is pending.
IV. A JUMBLE OF JUSTIFICATIONS?
There are three different sets of rules in EU equal treatment law on justified limitations on discrimination. Identification of which of them applies to a given factual context will depend on the entity against whom unequal treatment is being alleged, and whether the case against them is based on Article 20 or Article 21(1) of the Charter.Footnote 155
Both the Race Discrimination Directive and the Equal Treatment Framework Directive imported into EU law the distinction which finds its roots in EU equal pay law between direct and indirect discrimination.Footnote 156 Pursuant to the Race Discrimination Directive, direct discrimination can only be excused by reference to Member State measures concerning genuine and determining occupational requirements (Article 4), and Member State measures with respect to positive action (Article 5). With respect to indirect discrimination, in addition to this, an apparently neutral provision, criterion or practice can be objectively justified by a legitimate aim; provided that the means of achieving that aim are appropriate and necessary (Article 2(2)(b)).Footnote 157 The same applies under the Equal Treatment Framework Directive for indirect discrimination.Footnote 158 The latter instrument is different, however, from the Race Discrimination Directive, in that further grounds specified therein for justification of both direct and indirect discrimination are broader. This Directive includes more extensive provisions concerning occupational requirements (Article 4), provisions concerning age (Article 6), along with provisions concerning reasonable accommodation of disabled persons (Article 5). This, therefore, is the paradigm that applies with respect to justified limitations of rights protected by Article 21(1) of the Charter when a person, or persons, are alleging before Member State courts discrimination by either an emanation of the state or a private legal entity under the Race Discrimination Directive and the Equal Treatment Directive.
The inapplicability to cases of direct discrimination of the objective justification test of the Race Discrimination Directive and the Equal Treatment Directive that is relevant to indirect discrimination has prompted one Advocate General to observe that in ‘the context of direct discrimination, the protection given by EU law is stronger’Footnote 159 than that afforded by Article 14 of the ECHR and the rights to which it attaches, and that the difference of approach is ‘wholly legitimate’, given that ‘Article 52(3) of the Charter specifically provides that EU law may provide more extensive protection than that given by the ECHR’.Footnote 160
However, this higher standard of protection may be inoperative when the entity accused of breaching the rights appearing in Article 21(1) is alleged to be an EU institution, or a Member State implementing EU law in a subject area falling outside of either the Equal Treatment Framework Directive or the Race Discrimination Directive. In these circumstances, no investigation will be entered into by the CJEU with respect to whether the discrimination in issue is direct or indirect. Justified limitations will be determined by Article 52(1) of the Charter. This provision states as follows.
Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
Thus, Case C-190/16 Werner Fries Footnote 161 involved a challenge to the validity of EU legislation by reference to age discrimination that was patently direct, but which was resolved by reference to Article 52(1) of the Charter.Footnote 162
As already mentioned, Case C-528/13 Léger Footnote 163 concerned the interpretation of Commission Directive 2004/33 as regards certain technical requirements for blood and blood componentsFootnote 164—Point 2.1 of Annex III thereof precluded blood donations from ‘persons whose sexual behaviour puts them at high risk of acquiring severe infectious diseases than can be transmitted by blood’. This had been interpreted under French law, as entailing ‘permanent contraindication to blood donation for a man who has had sexual relations with another man’.Footnote 165 On any analysis, this amounted to discrimination on the basis of sexual orientation under Article 21(1) of the Charter which was direct by nature.Footnote 166
However, because the Equal Treatment Framework Directive was not relevant to the dispute, no consideration was given as to whether the conduct in issue was directly or indirectly discriminatory. The basis of justification that is applicable for indirect discrimination under those directives was effectively applied, given that it closely resembles Article 52(1) of the Charter. This included considering whether the French law in issue met an objective of general interest within the meaning of Article 52(1) of the Charter and whether, if in the affirmative, it respected the principle of proportionality within the meaning of that provision.Footnote 167
The aforementioned ruling in Glatzel Footnote 168 provides a final example. Glatzel challenged the validity of Point 6.4 of Annex III to Directive 2006/126 on driving licenses,Footnote 169 which required, without derogation, that applicants for categories C1 and C1E driving licenses have a minimum visual acuity of 0.1 in their worse eye even if those persons use both eyes together and have a normal field of vision when using both eyes together, for being incompatible with Articles 20, 21(1), and 26 of the Charter. Here too, this would appear to amount to direct discrimination,Footnote 170 on the basis of disability although, as was the case in Léger, whether the discrimination was direct or indirect was irrelevant on the facts of Glatzel. The Court, referring to Article 52(1) of the Charter,Footnote 171 held that it was not necessary for the purposes of determining the validity of Directive 2006/126 to determine whether Glatzel had a disability within the meaning of Article 21(1) of the Charter, because refusing a driver’s license in categories C1 and C1E on the ground that his visual acuity was insufficient was objectively justified in the light of over-riding considerations of road safety.Footnote 172 However, earlier, in Case C-236/09 Test Achats,Footnote 173 the Court made no reference to Article 52(1) of the Charter in deciding whether EU legislation of was invalid for breach of Article 21(1) of the Charter for non-compliance with discrimination on the basis of sex, referring only briefly to the general principle of objective justification.Footnote 174
There is a final additional twist when Article 20 of the Charter is in dispute, and situations in which like cases have not been treated the same. In completing its reasoning in Glatzel, discussed above, the CJEU noted that Article 20 of the Charter entitled ‘equality before the law’ aims to ensure, inter alia, that comparable situations do not receive different treatment.Footnote 175 The Court decided that the situation of drivers in different parts to Annex 3 of the Directive on driver’s licenses were not comparable, and so did not go on to consider justified limitations. However, prior to Glatzel, in Case C-401/11 Soukupová,Footnote 176 in deciding that discriminatory treatment on the basis of gender with respect to the calculation of normal retirement age for the payment of early retirement support under the Regulation 1257/1999 on support for rural development under the European Agriculture Guidance and Guarantee Fund,Footnote 177 the CJEU referred to the test conventionally applied in disputes concerning the general principle of equal treatment by considering whether the national measure impugned was ‘objectively justified’,Footnote 178 after deciding that the Member State concerned had been ‘implementing’ EU law within the meaning of Article 51(1) of the Charter.Footnote 179 There was no analysis of whether the unequal treatment had been direct or indirect and no mention was made of Article 52(1) of the Charter. All this re-begs an often-posed question: is the pain endured in seeking coherence in the distinction between direct and indirect discrimination worth any tangible and guaranteed gain?Footnote 180
V. CONCLUSION
Coherence is central to the mission of the CJEU and the courts of the Member States in upholding the rule of (EU) law.Footnote 181 It can be concluded from the above analysis that, for the moment, the categories of rights protected by Article 21(1) of the Charter are closed, and supplemented minimally by Charter principles. Further, in relative terms, the low profile that Articles 21(1) and 20 of the Charter have had, in comparison with other primary provisions of EU law, in the development of the prohibition on unequal treatment has occasionally resulted in gaps and inconsistencies in the norms that have evolved via case law to secure their enforcement, and lost opportunities to illuminate areas that might be ripe for development. It has also led to disconnect in the relationship between Articles 20 and 21 of the Charter, and important Charter provisions governing the rules for its enforcement, such as Article 52(3) of the Charter on the relevance of the ECHR to levels of protection, and Article 52(1) on justified limitations on Charter rights.
In a Union founded on respect for individual rights, comprehensive reasoning is essential to the continuing legitimacy of the CJEU as a fundamental rights tribunal.Footnote 182 It is here merely suggested that enhancement of the rigour with which Articles 20 and 21 of the Charter are treated as umbrella provisions for the protection of fundamental rights in the European Union, and more reflection on the relationship between them and both EU legislation aimed at implementing rights protected by Article 21(1), and provisions of the Charter dedicated more broadly to securing its enforcement, may contribute to improving coherency.
