A. Introduction
The Ancient Greeks—arguably the historical fathers of our European non-discrimination paradigm—had a very rich understanding of equality that distinguished between its many different dimensions, inter alia discerning equality in various spheres of life.Footnote 1 Originally, the predecessor of the European Union, the European Economic Community, however, was only concerned with one dimension of equality, namely equality of economic opportunity. Indeed, the European Union has been deemed to foster fully-fledged equality of economic opportunity amongst citizens commuting between its various Member States to ensure their maximum prosperity and economic well-being. Nevertheless, as the Union developed slowly but surely from an organization predominantly concerned with economic integration into one with a broader political agenda, and concomitant areas of competence, its ambitions in the field of equal treatment similarly expanded towards more encompassing visions of justice.Footnote 2
At the turn of the millennium, the year 2000 marked the birth of EU anti-discrimination lawFootnote 3 as a field in its own right with the adoption of two major Equality Directives.Footnote 4 Not only did they extend the prohibition of discrimination with five additional grounds but also—albeit only for the grounds of race and ethnicity—significantly expanded the material scope of equality regulation.Footnote 5 The present Article zooms in on these 2000 Equality Directives, as well as on the “new” grounds of discrimination planted therein, namely race and ethnicity (the grounds introduced by the Race Equality Directive), religion, sexual orientation,Footnote 6 age, and disability (the grounds introduced by Framework Equality Directive) and the related jurisprudence of European courts. Having reached its eighteenth birthday in the year 2018, EU anti-discrimination law can now celebrate its adulthood. Yet, several problems threaten to undermine this maturity.Footnote 7 First, as is well demonstrated by the Commission’s reports,Footnote 8 a number of countries have delayed the implementation of these directives for many years.Footnote 9 Second, an impressive number of countries joined the EU in the meantime—in 2004, 2007, and 2013—and some of the new Member States have demonstrated notorious resistance to the Equality Directives, manifesting in a very long process of transposition.Footnote 10 Third, the Court of Justice of the European Union (“CJEU”) known as the guardian of the European Garden of Equal Delights, has—for a variety of reasons—delivered a rather modest number of cases on some of the newly introduced ground, in particular regarding race and religion.Footnote 11
Nevertheless, eighteen years or the age when most Europeans are deemed to reach full adulthood according to civil and criminal law, surely marks the arrival of an appropriate term to look back, and ask the central question: How EU anti-discrimination law has developed in relation to these grounds of discrimination—that were added to gender and nationality—to cultivate the Garden of Equal Delights.Footnote 12 This Article, therefore, sets out to catch a bird’s eye view on the striking developments and shortcomings that have emerged regarding the interpretation and implementation of relevant EU secondary law during the first two decades of the 21st century. The Article, thus, offers a glimpse into the past, present, and hopefully future of EU anti-discrimination law, as despite all the flaws in the Union’s Garden of Equal Delights, it offers one of the highest standards of protection in comparative anti-discrimination law.Footnote 13
In order to provide this panoramic analysis, we will first outline the genesis and main stages in the development of EU anti-discrimination law. The latter is by now undoubtedly an independent discipline within the narrative of EU law, and not merely a component of EU labor law or an emanation of EU “social rights.”Footnote 14 The Rome (1957), Amsterdam (1997), and Lisbon Treaties (2007) mark the central stages of our historical overview. The second part will focus on the major normative and practical themes emerging in EU anti-discrimination law after 2000. The specific themes we are focusing on include the personal and material scope of the Directives, new forms of discrimination and mechanisms to counteract discrimination—for example, the duty of reasonable accommodation—as well as the proceduralization of EU anti-discrimination law, in particular through the proliferation of equality bodies. Throughout these two parts and the follow-up conclusions, we reflect upon the nature, achievements, challenges, and limits of the current framework of the post-2000 EU anti-discrimination law.
B. A Brief History of EU Anti-Discrimination Law
It is common knowledge that the EU did not start as an organization focused on fundamental rights.Footnote 15 The EU did not have—or envisage developing—a fully-fledged system of anti-discrimination law, encompassing the complete panoply of dimensions stemming from the right to equal treatment and covering the full range of discrimination grounds.Footnote 16 It is equally obvious that the EU has come a long way since then, partly due to changes in the founding treaties that have enabled adoption of Equality Directives, and partly due to the jurisprudence of the CJEU, interpreting the treaty and directive provisions and developing a daring jurisprudence, as the principle of equal treatment is held to be a general principle of EU law.Footnote 17
This general principle of equality embodies Aristotle’s formula of equal treatment, namely that one should treat like things alike and unlike things differently to the extent of the difference.Footnote 18 This formula aptly captures that in some respects one wants to be treated alike, while in others one wants to be treated differently. In other words, sometimes differential treatment should be contested to vindicate the right to be treated the same, while in some circumstances being treated differently in fact ensures that one’s special characteristics are taken into account.Footnote 19 Regarding the former, it is essential to devise criteria in order to distinguish between legitimate differential treatment and prohibited discrimination. In this respect, EU law has famously chosen to develop different tracks for direct and indirect discrimination. Due to the different avenues of justification, the exact dividing line between these two types of discrimination remains of interest and is frequently the object of debate.Footnote 20 Other topics of ongoing controversy include positive action, more particularly when—and under what conditions—this type of differential treatment would be legitimate.Footnote 21 Another related theme concerns the ambit of possible duties of differential treatment, for example those aimed at overcoming hurdles to the equal participation of persons that are in some respects different. The latter consideration is interlinked with questions about the implications of the prohibition of indirect discrimination and the scope of application of the duties of reasonable accommodation.
Prior to embarking on the fascinating journey analyzing the scope and impact of the 2000 Directives, this section takes stock of the history of EU equality law.
In outlining the evolution of EU anti-discrimination law, we broadly distinguish three phasesFootnote 22 structured around the two defining moments of amendments to the founding treaties, namely the Treaty of Amsterdam (1997) and the Treaty of Lisbon (2007).
I. Phase 1: Prior to The Treaty of Amsterdam (1958–1999)
Turning to the three phases that can be distinguished in the development of EU anti-discrimination law, the first phase begins with the adoption of the EEC Treaty in 1957 and its entry into force in 1958. From the start, the right to equal treatment played an instrumental role in the construction and development of the European Economic Community (EEC).Footnote 23 The original rationale for including a prohibition of discrimination was the realization of the single economic market.Footnote 24 This realization is clearly visible on the grounds of discrimination that were included in the original EEC Treaty, giving the EC competence to legislate on nationality and gender. Indeed, “nationality” as prohibited grounds of discrimination—Article 12 EEC, now Article 18 TFEU—only concerns the citizenship of an EU Member State and is intended to eliminate the disadvantageous treatment of persons in one EU country holding the nationality of another EU country. In this respect, it has correctly been pointed out that the prohibition of discrimination on the basis of nationality was intended to support and realize the free movement rights of persons, services, goods, and capital lying at the heart of the common market project.Footnote 25 Working, providing services, or offering goods for sale should not be made more complicated for persons coming from another EU Member State as compared to the own nationals of a country. Otherwise, this would jeopardize the realization of the common market, predicated on a free, unimpeded flow of persons, services, goods, and capital—financial flows in payment for services, goods, among other things.Footnote 26 Similarly, the inclusion of an at first sight very limited version of gender discrimination prohibition—namely one confined to equal pay (Article 119 EEC, now Article 157 TFEU)Footnote 27—can also be understood from this internal market perspective. It was simply meant to prevent competitive advantages for countries where women are not paid as well as men.Footnote 28
Since the Treaty of Rome—and notwithstanding the most humble status of the equality principle therein—the prohibition of gender discrimination has experienced an impressive expansion. Few scholars could have imagined in the 1950 s that the short provision of Article 119 EEC would pave the way to the far-reaching ambit of the prohibition of gender discrimination we know today, covering not only labor law and social rights, but also translating into the regulation of sex work as well as the prohibition of domestic violence and human trafficking.Footnote 29 The most important EU institutions—the CJEU, the Council, the Commission, and the Parliament—have at various times, and to varying degrees, taken part in this development.Footnote 30
The 1970 s were crucial for anti-discrimination law, as it was the period when the CJEU, through several preliminary rulings, provided effective protection against discrimination, not only on grounds of nationality, but also on grounds of gender. Through these preliminary rulings, the Court introduced—and applied—direct effect for several Treaty articles that were clearly directed at Member States, thus allowing action against those that had not managed, or did not have the political will, to turn these Treaty provisions into fully fledged legislative programs before the end of the transitional period on December 31, 1969.Footnote 31 In the process, the Court fostered the emancipation of EU gender equality. That legal space has been successfully mobilized in the advocacy of feminist cause litigators and social movements.Footnote 32 On the basis of the direct effect of Article 119 EEC, the CJEU has since developed its doctrine of sex equality as a general principle of EU law.Footnote 33
Over the last thirty years, the EU has passed nine directives on gender equality that closely reflect the CJEU’s judgments on the topic.Footnote 34 The activist Luxembourg Court has extended the primary law provision by interpreting the gender aspects of equal pay to include pension and social guarantees for men and women, as well as regulations regarding pregnancy and child-raising.Footnote 35 Arguably, the Court’s activist interpretation in this period culminated in its rulings on transsexuals. Indeed, in the 1996 judgment P. v. S.,Footnote 36 the Court interpreted the provision on the equality of men and women as applying to cases of gender reassignment.Footnote 37
II. Phase Two: The Treaty of Amsterdam Until Lisbon (1999–2009)
The second phase was kick-started with the Treaty of Amsterdam—signed in 1997, entered into force in 1999—which was in at least two ways extremely important for the development of EU anti-discrimination law. First, gender equality was mainstreamed with Article 3(2) TEC—now Article 8 TFEU—which stipulated that in all of its activities, the European Community “shall aim to eliminate inequalities, and to promote equality, between men and women.”Footnote 38 This significantly strengthened the prohibition of discrimination on the basis of gender, as it raised constant awareness of potential discriminatory effects that policies and legislation may cause for women.
Second, the Treaty finally multiplied the protected grounds of discrimination, while establishing EU legislative competence in relation to five new grounds: (1) Race and ethnicity; (2) religion; (3) disability; (4) age; (5) and sexual orientation.Footnote 39 This extension in protected grounds clearly implied a move for EU anti-discrimination law beyond the common market rationale towards a more social ethos.Footnote 40 In fact, the extension of grounds covering prohibited discrimination also signifies the importance of the right to equal treatment in securing human dignity.Footnote 41 In turn, this shift linked perfectly with the more central role of human rights in the EU, clearly articulated previously by the Treaty of Maastricht (1992) and figuring as a true core of the EU in the Treaty of Amsterdam (1997); thus it built on the CJEU’s recognition that respect for human rights amounted to a general principle of EU law.Footnote 42 Furthermore, Article 19 TFEU—introducing new grounds of equality beyond gender—found its domicile in Part Two of the Treaty, entitled “Non-Discrimination and Citizenship of the Union.” In this respect, the project of EU anti-discrimination law is joined with the wider vision of citizenship-formation in the Union, with equality becoming a distinctive feature of EU citizenship, not only horizontally, amongst nationals of Member States, but also vertically, amongst different groups of citizens inside Member States.Footnote 43
When the Treaty of Amsterdam came into force in 1999 it was quickly followed by the adoption of two watershed directives, the first focusing on race—Race Equality Directive (“RED”)—and the second focusing on the other four new grounds—Framework Equality Directive (“FED”)—introduced in Article 13 TEC, now Article 19 TFEU. The impressively speedy and smooth adoption of these instruments has been hailed in literature on the topic.Footnote 44 It can be attributed to the combination of a certain post-Amsterdam optimism regarding equality matters in the Union amongst then center-left elites on the one hand and the willingness to counteract xenophobia following the rise of the radical right in the Austrian elections on the other.Footnote 45 This is also the epoch when a separate mechanism was introduced in Article 7 TEU aimed at ensuring that Member States respect the fundamental values of the EU— including the rule of law—through early warning and sanctioning.Footnote 46 The speedy adoption of these Equality Directives was equally a pragmatic necessity in light of the impending Eastern enlargement. On the one hand, the adoption of these directives was expected to become more difficult in a Council of Ministers comprising many more Member States, several of which with post-communist baggage—for example CEE countries, or conservative elites like Cyprus or Malta. On the other hand, the swift adoption of these directives would make them part of the Union equality acquis, with which the acceding states would have to comply by virtue of the Copenhagen conditionality.Footnote 47 Nonetheless, Eastern European States were not the only ones delaying and resisting the new machinery of EU anti-discrimination law.Footnote 48 German legal elites, often a driving force behind EU federalism, gradually became skeptical too, especially in the wake of the CJEU’s jurisprudence on age discrimination.Footnote 49
The ensuing case law during this second phase was not as abundant as expected for several of the five additional grounds. Nevertheless, this phase did generate some landmark judgments,Footnote 50 such as Mangold (2005)Footnote 51—which recognized the principle of non-discrimination on grounds of age as a general principle of Community law—and Coleman (2008)Footnote 52—which established “discrimination by association,” and thus further extended the reach of EU anti-discrimination law. The first—and for many years, also the only—race equality judgment of the Court of Justice, Feryn (2008),Footnote 53 was also decided at the very end of this period, along with Maruko (2008),Footnote 54 which concerned the grounds of sexuality in the Framework Equality Directive.
III. Phase 3: Lisbon and Beyond (2009 to The Present)
The Lisbon Treaty—signed in 2007, entered into force in 2009—unfolded the third phase of EU anti-discrimination law, giving an even stronger central position to the principles of equality and non-discrimination.Footnote 55 In addition to several other prominent references to equality in the core Treaty provisions,Footnote 56 Article 10 TFEU enshrines a general obligation to mainstream the right to equal treatment in relation to all grounds.Footnote 57 Albeit programmatic, this central and outspoken position for the right to equal treatment within EU law goes hand in hand with a stronger position for human rights within the EU. Indeed, the Lisbon Treaty made the EU Charter of Fundamental Rights (“Charter, CFR”)Footnote 58 part of primary EU law and thus legally binding.Footnote 59
It should be acknowledged, however, that the Charter already had a certain influence on the development of EU law prior to the Lisbon Treaty,Footnote 60 even though it was initially merely invoked as additional support, affirming rights already enshrined in EU law through general principles.Footnote 61 Though the influence of the Charter on the development of EU human rights law increased steadily over timeFootnote 62—since the Lisbon Treaty—the instrument has been exponentially relied upon by the CJEU in more bold ways.Footnote 63 Even if Article 6(1) TEU underscores that the Charter’s status as primary law will not imply an extension of the competences of the Union as defined in the Treaties, it has aptly been pointed out that the Charter’s status will breathe new life into the EU competences by focusing on the rights of the individual with regard to all EU policies.Footnote 64 In fact, all of Chapter III of the Charter is dedicated to equality and covers broader anti-discrimination law, including a general provision on equality before the law—Article 20 CFR—as well as a provision obliging the Union to respect cultural, religious, and linguistic diversity—Article 22 CFR.
It remains to be seen how the CJEU will use the non-discrimination clause enshrined in Article 21 CFR because this prohibits “any discrimination based on any ground, such as sex, race, color, 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.” While this opens the door for any ground of discrimination, several grounds of interest are explicitly added in Article 21 of the Charter—in comparison to the already-existing palette of grounds outlined in TEU and TFEU—such as “language,” “membership of a national minority,” and “genetic features.” Although the Treaties may not contain provisions for legislating over these additional grounds, Article 51 CFR does stipulate that the principles set out in the Charter should guide the development of EU policies and the implementation of these policies by national authorities.Footnote 65 Hence, difficult questions may arise before the CJEU when EU legislation and policies—and/or the national implementation thereof—have disproportionate effects on groups defined on these additional grounds of discrimination. In this respect, questions surrounding the status of third-country nationals may (re)surface.
At the level of secondary equality legislation, the European Union in this third phase has so far failed to adopt an updated directive proposed by the Commission in 2008—the Council Directive Implementing the Principle of Equal Treatment between Persons Irrespective of Religion or Belief, Disability, Age or Sexual Orientation.Footnote 66 This proposal aims to extend the material scope of application of the prohibition of discrimination to the fields of education, social protection—including healthcare and social security—social advantages, and access to goods and services—including housing. The proposal thus sought to remedy the disparities in scope of application of the prohibition of discrimination on grounds of race and gender. The envisaged directive also for the first time attempted to introduce specific provisions about multiple discrimination and to extend the prohibition of discrimination to transport.
Strikingly—and unlike the smoothly-adopted 2000 Directives—this Commission proposal has been burdened with several unsuccessful negotiation rounds, reflecting a changed political climate. The changing wind has brought vivid resistance from several Member States with a range of concerns.Footnote 67 In comparison with the 2000 Directives, the negotiating parties have grown exponentially in numbers, proportionately augmenting the potential for disagreement. The rise in right-wing governmentsFootnote 68—as opposed to the predominance of central-left political forces at the turn of the century—further explains the increased resistance against progressive expansions of the anti-discrimination norm. Some Member States—including influential players such as Germany—view the proposed directive as an encroachment on national competences, also with a view to subsidiarity considerations.Footnote 69 Certain Member States have a particular resistance to the inclusion of social protection and education in the scope ratione materiae of the proposed directive.Footnote 70 Given the requirement of unanimity in the Council for the adoption of this directive under Article 19 TFEU, actual progress in this respect seems indiscernible at the moment.
IV. Overarching Development Trends
Throughout the three outlined phases, a steady growth of commitment to the principle of equality can be detected.Footnote 71 As highlighted above, a constant feature underpinning these three phases reveals the central influence of the CJEU’s jurisprudence on the development of EU non-discrimination law. Indeed, Treaty provisions and secondary legislation are often vague and contain ill-defined concepts, thus requiring clarification through jurisprudence. In this respect, it is important to acknowledge that EU anti-discrimination law projects a somewhat thin line between interpretation and application, on the one hand, and law-making, on the other.Footnote 72
In the end, it is this jurisprudence—and ultimately the CJEU’s case law—that demarcates the reach of these concepts and rules, and also the level of protection that is provided against unjustified differential treatment.Footnote 73 The CJEU is known for its teleological interpretation, aimed at effective protection against discrimination.Footnote 74 The CJEU’s determined and sustained approach in this respect is inter alia visible in its jurisprudence on non-discrimination concepts, a move towards substantive equality—beyond mere formal equality— particularly through the development of the notion of indirect discrimination, and its softening approach regarding positive action measures.Footnote 75 Similarly, the Court’s recognition of the right to equal treatment and the prohibition of discrimination as general principles of Union law,Footnote 76 and—last but not least—its case law on procedural requirements and remedies merits highlighting here.Footnote 77
The Court has often underscored that because equality of treatment is a fundamental objective of both Treaty provisions and implementing legislation, a broad purposeful approach is required.Footnote 78 A prominent example of the Court’s embrace of substantive equality is its development of the concept of indirect discrimination, thus significantly enlarging the reach of the prohibition of discrimination.Footnote 79 The Court’s judgment in Mangold (2005),Footnote 80 that has sparked controversy in certain circles in Germany,Footnote 81 and its more recent judgment in Tests-Achats (2011),Footnote 82 as well as the daring way in which it employs the right to equal treatment as a general principle of Union law, shows a judiciary set on protecting the right to equal treatment as best it can.Footnote 83 This approach is similarly confirmed by the consistent jurisprudence on a restrictive, rigorous interpretation of provisions concerning exceptions and derogations to the non-discrimination principle. Equally essential is how the Court clarifies the sharing of the burden of proof in discrimination cases, thus effectuating the reduction of the—traditionally often insurmountable—burden of proof on behalf of the victim.Footnote 84
Importantly, also in light of the development of a coherent body of EU anti-discrimination law, the CJEU has taken care to use common interpretation techniques and to treat common issues consistently across the distinctive grounds of discrimination.Footnote 85
The following section will elaborate upon several of the related major trends and themes.
C. Major Trends and Themes Since The Adoption of The 2000 Equality Directives
I. Disproportionality Amongst Grounds of Discrimination in CJEU jurisprudence
Our assessment of the major trends and themes emerging since the adoption of the 2000 Equality Directives is based foremost on the activities of the Court of Justice, which—as has been shown in the historical exploration above—has traditionally played a most activist role in sustaining the rise of its anti-discrimination law. Yet, such a court-centric perspective suffers from a natural limitation. Before drawing a wider picture of the post-2000 EU anti-discrimination law, we have to keep a certain limitation in mind, namely that the number of judgments delivered by the CJEU with regard to the five new equality grounds—added by Article 19 TFEU and 2000 Equality Directives—has been anything but equal. Gender equality still remains the most judicialized aspect of equality in Luxembourg, often setting a comparative paradigm for dealing with the other five non-discrimination grounds. In contrast, from 2000 until 2018, the Court of Justice produced a substantive number of decisions regarding discrimination on the grounds of age and disability, much less so with regard to sexual orientation, and scarcely with regard to race and religion.Footnote 86
Summing up this account of the Court’s jurisprudence by the beginning of 2018, we can herald only two full-fledged judgments of the CJEU concerning the grounds of race and ethnicity,Footnote 87 and two parallel judgments decided on the grounds of religion.Footnote 88 Apart from the sensitive nature of these areas for Member States, the scarce number of judgments can be attributed to an array of factors, including the low awareness of discriminated plaintiffs belonging to ethnic and religious minorities about their material and procedural rights under EU law, as well as an often multiple nature of experienced discrimination—like the combination of gender and race.Footnote 89 Furthermore, the distinction between ethnic and religious discrimination is not always crystal-clear, as the material scope of the former prohibition is much wider than simply the field of employment, which the Framework Equality Directive prescribes for the latter. Finally, more litigation could be expected with the rise and empowerment of equality bodies to support race and religion cases in the future, as will be explained below.
II. Material and Personal Scope of Equality Directives
While the 2000 Directives contain several common provisions, they differ markedly in terms of their scope ratione materiae. The Framework Equality Directive is confined to the employment sphere, while the Race Equality Directive also covers social protection, including social security and healthcare, education, and access to goods and services available to the public, such as housing.Footnote 90 The Directives are further constrained because they do not cover the prohibition of discrimination on the basis of nationality.Footnote 91 Furthermore, the FED includes an exception regarding religious occupational requirements for religious bodies.Footnote 92
On the one hand, it remains an enigma that RED—while enjoying such a rich material scope—has eventually led to only two cases decided by the Court of Justice in seventeen years.Footnote 93 On the other hand, the limited scope of FED partially explains the failure of the Court to extend the application of EU anti-discrimination law to its case law on name-spelling as part of the language rights of ethnic minorities. This jurisprudence was regarded by the CJEU as exclusively part and parcel of discrimination based on nationality—tantamount to citizenship of EU Member States—instead of as ethnic discrimination. In the absence of a formal possibility to advance RED in the nationality context, the Court took an unfortunate restrictive turn in its interpretation of language rights,Footnote 94 satisfying the political appetites of local nationalism and shielded by the esoteric protection of national identity embedded in post-Lisbon primary EU law.Footnote 95 Likewise, the Court has delivered a highly disputable judgment, in which it left the door open for states to restrict blood donations by gay and bisexual individuals.Footnote 96 Without a de jure possibility to advance FED in this medical context, the CJEU indeed left the ultimate decision to the national court whether or not a blanket ban on blood donation by MSM—men who had had sex with other men—is in line with the prohibition of discrimination on grounds of sexual orientation.Footnote 97 The CJEU, thus, has been criticized for the failure to qualify such blanket bans as unjustifiable because they are deemed unacceptably over- and under-inclusive, and therefore inspired by a deep-seated homophobia rather than the protection of public health.Footnote 98
The recent decline of democracy in the Union—in particular in Hungary and PolandFootnote 99 —has placed another dilemma for the material scope of EU anti-discrimination law, namely on whether Equality Directives can play a safeguard role to protect rule of law in the Member States. Two judgments from the Court of Justice are emblematic to this debate. The first is Commission v. Hungary in 2012. In this case, the right-wing government in Hungary managed to substitute a considerable number of judges and prosecutors with new Fidsez appointees by radically lowering the age of retirement in the beginning of 2010 s. Although the CJEU indeed established age discrimination based on the FED, the verdict for the 2012 case brought by the EU Commission against HungaryFootnote 100 has been criticized as toothless for its failure to establish a clear nexus between the rule of law and age discrimination and belated enough—despite its accelerated procedure—to permit the ruling party substituting judicial office in the meantime.Footnote 101 Yet, in its most recent ordinance in a similar case regarding the retirement age for the judges of the Supreme Court in Poland (2018),Footnote 102 the Vice-President of the CJEU ordered to suspend the effects of the Polish Judiciary Reform Act and, in particular, to ensure that no sitting judge is removed as a result of the new retirement age, which has been regarded as revolutionary.Footnote 103
In contrast to the material scope, the ratione personae is similar between RED and FED, and covers both public and private sectors, including individuals and public bodies, such as state authorities, companies, and social partners.Footnote 104 More specifically, EU anti-discrimination law envisages an implementation possibility through social partners, provided that they take the necessary steps to ensure that they are at all times able to guarantee the result required by the FED.Footnote 105 Accordingly, EU legislation forces some states to reconsider their traditional view that fundamental rights should be binding and enforceable only against state authorities and not against private bodies.Footnote 106
Geographically, the Equality Directives cover all current—pre-Brexit—twenty-eight Member States of the Union.Footnote 107 Depending on the country concerned, RED and FED may be indirectly relevant beyond the EU in the EFTA zone.Footnote 108 Although the 2000 Directives are not formally incorporated into the EEA Agreement due to the lack of a legal basis, there are signs that those states are often willing to adopt similar legislation so as to be in line with the EU mainstream.Footnote 109 In the future, these Equality Directives will also remain a guiding force for the acceding Member States in satisfying the Copenhagen criteria of observing fundamental rights and equality.
III. Proceduralization of EU Equality Law
One way in which the 2000 Equality Directives have undoubtedly advanced EU anti-discrimination law pertains to the new procedural set-up of this field. This is the area where one can observe a rise in cause lawyering, learning from the experience of the US Civil Rights Act of 1964 and its advancement by the Equal Employment Opportunity Commission in the United States.Footnote 110 In a somewhat similar mode, the Equality Directives gave locus standi for organizations to represent disadvantaged groups in the absence—or on behalf—of the individual plaintiffs. The Directives also enabled these organizations to collect information and provide advice. According to Articles 7(2) RED and 9(2) FED:
Member States shall ensure that associations, organizations or other legal entities that have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, either on behalf or in support of that complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive.
Likewise, earlier developments with similar national bodies in the United Kingdom and the Netherlands—borrowing from the American model—have inspired the institutionalization of equality bodies on the EU level.Footnote 111 So far this is only required under RED, however, not under FED. Put differently, RED stipulates:
Member States shall designate a body or bodies for the promotion of equal treatment of all persons without discrimination on the grounds of racial or ethnic origin. These bodies may form part of agencies charged at national level with the defense of human rights or the safeguard of individual rights.Footnote 112
But in practice, such bodies tend to cover all grounds of discrimination from Article 19 TFEU. As a result of these incorporations into EU anti-discrimination law, two major cases reached the CJEU via preliminary rulings from national jurisdictions, notwithstanding the absence of actual individual plaintiffs complaining about discriminatory hiring practices: The case of Feryn, regarding a statement by an employer in media about his reluctance to hire Moroccans,Footnote 113 and the case of Asociaţia ACCEPT (2013), where a club patron heralded that he will never hire a homosexual football player to the team.Footnote 114 Both cases reached the Court from Belgium and Romania in the virtual absence of a single plaintiff pertaining to the disadvantaged groups at stake: Moroccan people in Feryn and gay individuals in Asociaţia ACCEPT. In Feryn, it is additionally striking that the plaintiff organization—anti-racist center—was an “equality body” established in line with Article 13 RED. That organization launched a claim before a national labor court against the firm Feryn that then wound up at the Court in Luxembourg through a preliminary reference. In ACCEPT, an LGBT organization brought a case against the national equality body under the FED for having failed to offer an accurate interpretation of EU anti-discrimination law.
These scenarios for strategic litigation, by either a strong and genuinely independent equality body—like in the Belgian case—or by an autonomous human rights organization—like in the Romanian case—essentially revolutionize future development of anti-discrimination law in Europe. Such a litigation option provides a veritable boost to otherwise desperate cases with no individual plaintiffs available.
There are a number of factors that potentially prevent individual plaintiffs from launching a case, including inter alia:
Low awareness of legal possibilities to seek judicial redress, frequently combined with imperfect knowledge of the official language of procedures, which very often affects migrants;
Serious physical or mental handicaps in cases involving disabled people;
Age of affected victims, for cases involving both the youth and the elderly;
Religious considerations or subordinated status—for example, women in some traditional Islamic families; and
Fear of public disgrace or considerations of privacy and safety—for example, cases with LGBT plaintiffs.
The 2000 mechanism, thus, for the first time facilitates access to national courts and, depending on the willingness of these national courts to request preliminary rulings, to the CJEU on behalf of collective actors, an aspect which—in contrast—remains a weak spot in the Strasbourg mechanism with its accent on individual claims. Hence, advocacy groups get access to courts on equality matters, albeit to a different extent in various Member States. In this respect, EU law offers an easier procedural track for collective claims pertaining to group minority interests than individual, and often timely and lengthy, claims at the European Court of Human Rights. Apart from preliminary rulings in the CJEU, other EU opportunities include infringement procedures and annulment actions by the institutions.Footnote 115
If facilitated through sufficient financial and informational resources—a task that should be duly understood as an objective of the EU anti-discrimination scheme—this focus on NGOs is capable of strengthening equal opportunities in Europe under the double vigilance of EU institutions and civil society.Footnote 116 As has been highlighted in literature, EU equality bodies, however, face significant challenges, including a reduction of resources, restructuring, threats to independence, and lack of expertise, among other problems.Footnote 117 Nonetheless, where the national parliament and government have endowed such bodies with substantial functions, these new organizations appear to fulfill an active role.Footnote 118
IV. Forms of Discrimination in EU Anti-Discrimination Law
Following a formal interpretation of the 2000 Equality Directives, we can deduce four forms of discrimination underpinning EU anti-discrimination law for the time being.Footnote 119 The four forms of discrimination cover direct discrimination, indirect discrimination, harassment, and instruction to discriminate. In addition, all of the Directives outlaw victimization of those complaining of discrimination. Both RED and FED require Member States to: [I]ntroduce into their national legal systems such measures as are necessary to protect individuals from any adverse treatment or adverse consequence as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment.Footnote 120
As new grounds of prohibited discrimination are added to the palate of EU anti-discrimination law, old debates are bound to be rekindled, such as the dividing line between direct and indirect discrimination.Footnote 121 These two forms of discrimination remain central in the Court’s analysis, leaving harassment and instruction to discriminate in a rather more obscure role for the time being. The stark distinction in EU law between possible justifications for direct versus indirect discrimination has elicited several discussions on the scope of this dichotomy, highlighting the considerable grey zone in this regard.Footnote 122 This grey zone is particularly acute in cases of so-called systemic discrimination, where ingrained prejudice in society plays a considerable role. In instances of deep-seated prejudice, are neutral rules really “neutral” notwithstanding their disparate impact maintained over decades? This line of thinking has been developed in relation to the Roma people—studied as a paradigmatic example of victims of systemic discrimination—but reasoning is arguably equally valid for several other discriminated groups regarding grounds of discrimination in the EU’s palate. Put differently, a more nuanced, holistic approach is needed when qualifying particular instances of discrimination as amounting to direct or indirect discrimination.
Remarkably, there has not yet been case law focusing on the definition and scope of the prohibition of harassmentFootnote 123 and sexual harassment, instruction to discrimination, and victimization as instances of prohibited discrimination. The related interpretative questions remain to be resolved in future case law.
The terminology of harassment is definitely a transatlantic legal transplant, protected in the United States by virtue of Title VII of the Civil Rights Act of 1964. In the US, this provision was primarily meant to address discriminatory practices against racial minorities—which makes particular sense in the American employment context—whereas hate speech has been systematically justified by the Supreme Court under the First Amendment.Footnote 124 The Civil Rights Act covers the grounds of race, color, religion, sex, and national origin. By the 1980 s, the US Equal Employment Opportunity Commission had issued guidelines on sexual harassment as a breach of Section 703(a)(1) of Title VII of the Civil Rights Act of 1964.Footnote 125 Since the 1990 s, a number of European countries have been targeting hateful expressions in the employment context as a part of workplace harassment; for example, intimidatie in the Netherlands, harcèlement moral in France, and trakasserier in Sweden. Sweden and France were particularly active in fostering various anti-harassment practices in labor law, linking them to a worker’s dignity.Footnote 126
Article 2(3) RED stipulates that “[h]arrasment shall be deemed to be discrimination... when an unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating, or offensive environment.”Footnote 127 Both RED and FED permit Member States to define harassment “in accordance with the national laws and practice of the Member States.”Footnote 128 The Court of Justice had an opportunity to define harassment twice, but in both cases limited its dictum to fairly general phrasing that does not shed much light on the position of harassment vis-à-vis direct and indirect discrimination. In the case of Coleman (2008), the Court held that the prohibition of harassment is not limited to the harassment of people who are themselves disabled.Footnote 129 In the case of Asociaţia ACCEPT, the Court requalified harassment—there, an instance of homophobic speech—as established by the national court into an instance of direct discrimination.Footnote 130
Thus, it currently remains unclear what precisely constitutes harassment as a separate form of discrimination and how national authorities should redress it. Even in cases that resemble the definition of harassment rather than direct or indirect discrimination sensu stricto, the Court appears to construct harassment as a sort of direct discrimination for the maximum benefit of plaintiffs.Footnote 131 The texts of the Directives imply that harassment “shall be deemed to be a form of discrimination”Footnote 132 when unwanted conduct related to a certain ground takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating, or offensive environment. The FED, however, leaves further definition of the concept of harassment to the laws and practice of the Member States. The way that this harassment clause was implemented in many EU countries suggests that Member States view harassment as a somewhat minor form of discrimination.Footnote 133 As reflected in the Romanian case discussed below, the Court missed the opportunity to take a position about this fairly debatable assumption and to clarify subtle distinctions in categories.
V. Positive Discrimination or Affirmative Action à la Européenne
The arrival of five new grounds of discrimination with Article 19 TFEU and the 2000 Equality Directives has also put a new spotlight on so-called positive discrimination, often referred to in the American context as affirmative action. The Directives in fact merged the European and American terminologies under the heading of “positive action.” The big question, however, is whether positive action is restricted exclusively to the confines of gender equality, or if it is also applicable with regard to ethnic, religious, sexual, age, and disabled disadvantaged groups. Positive discrimination certainly aligns with the invigorated focus on substantive or real equality, but it is well known that not all its manifestations are equally well received. Indeed, as soon as a positive action measure implies preferential treatment for one category or individual—and thus disadvantageous treatment for another—positive action is in tension with the right not to be discriminated against, or not to be treated unfavorably without justification.Footnote 134 Consequently, in the cases discussed below, assessing the legitimacy of positive action concerns a controversial balancing act—not so much regarding the question of whether positive action measures have a legitimate aim, but rather whether these measures are proportionate.Footnote 135
It has long been recognized that EU law does not wholly exclude positive action measures. Indeed, in the main anti-discrimination directives, a similar provision can be found which indicates that the principle of equal treatment shall not prevent a Member State from taking specific measures “to prevent or compensate for disadvantages linked to [the grounds covered by the Directives].”Footnote 136 Because these provisions are very open-ended, the case law of the CJEU and the interpretations and applications of the underlying proportionality principle provide further guidance to Member States as to what amounts to permissible action.
As highlighted by Christopher McCrudden and Sacha Prechal in their 2009 report for the EU Commission: [T]he ECJ has also recognized that to achieve equality of opportunity between women and men it will be necessary on occasion to go beyond the eradication of discrimination, and that positive action may be appropriate even where it results in the preferential treatment of the formerly disadvantaged group.Footnote 137
As the authors acknowledge, however, the CJEU has traditionally adopted a very restrictive approach in its case law on gender equality, construing positive action as an exception to the right to equal treatment.Footnote 138 Gradually, however, the CJEU softened its position. For example, in Lommers (2002), the Court did not refer to the principle that derogations from an individual right should be interpreted strictly. Instead, it held that
[I]n determining the scope of any derogation from an individual right... due regard must be had to the principle of proportionality, which requires that derogations must remain within the limits of what is appropriate and necessary in order to achieve the aim in view and that the principle of equal treatment be reconciled as far as possible with the requirements of the aim thus pursued.Footnote 139
This shift towards a more open proportionality analysis remains visible in the subsequent case law, in which the Court further defines the exact parameters of what is permissible, and to what extent, in a gradual, case-by-case, process.Footnote 140
Because the CJEU’s case law on positive action has so far only concerned the grounds of gender, it remains to be seen whether the Court’s reasoning—and more particularly its proportionality assessment—will vary for the other grounds. When looking at the additional grounds of prohibited discrimination with regard to documented histories of prejudice and discrimination, race, religion, and sexual orientation are obvious contenders for positive action measures aimed at compensating for the resulting ongoing disadvantages. Alternatively, age and disabilityFootnote 141 could lead to interesting case law on positive action of the preventive, prophylactic kind.
VI. Duties of Reasonable Accommodation
The Framework Equality Directive was the first piece of legislation to enshrine duties of reasonable accommodation in EU law, yet only in relation to the grounds of disability. In order to discuss duties of reasonable accommodation as a mechanism to counter discrimination, it is important to identify the underlying rationale and further define the concept. Admittedly, this notion does not have the same long pedigree as the prohibition of discrimination.Footnote 142 Nevertheless, since its emergence in Canada and the US in the 1960 s,Footnote 143 it has migrated to several other jurisdictions, including South Africa, Israel, and New Zealand, as well as to the level of international and regional organizations.Footnote 144 Duties of reasonable accommodation fit with the broader development towards a quest for equality, in particular regarding substantive equality. In the end, duties of reasonable accommodation aim at securing equal opportunities by evening out barriers to full participation due to the interaction amongst personal characteristics and the way the society is structured.Footnote 145 Because reasonable accommodation measures overcome these hurdles to participation, they ensure substantively equal access to employment, to public services, and to education, among other areas.Footnote 146
Duties of reasonable accommodation can be framed as applications of generally accepted dimensions of the right to equal treatment—particularly the duties of differential treatment and the prohibition of indirect discrimination. In short, duties of reasonable accommodation can be seen as a particular kind of duty of differential treatment, aimed at substantive equality, while accommodation measures can be considered as important tools to prevent or remedy instances of indirect discrimination.Footnote 147
Though the underlying rationale for duties of reasonable accommodation remains the same throughout, there are striking differences in their scope of application, including the grounds of discrimination covered. In some countries, duties of reasonable accommodation are identified for a broad range—or even all—grounds of discrimination, whereas for others these duties are only acknowledged in relation to particular grounds, generally disability, and often religion.Footnote 148 When considering UN treaties and EU secondary legislation, duties of reasonable accommodation are so far only explicitly recognized in relation to disability.Footnote 149 Yet it merits underscoring that in the US and Canada, the duties were originally conceptualized in order to deal with religious diversity resulting from immigration.Footnote 150 Hence, duties of reasonable accommodation could certainly be extended to religion. More generally, as these duties are an inherent dimension of the right to equal treatment, being intrinsically related to duties of differential treatment and the prohibition of indirect discrimination, there is no reason in principle not to grant duties of reasonable accommodation a broader scope of application.Footnote 151
In terms of possible contestations with regard to measures of reasonable accommodation, it is important to note that these duties to provide accommodation are not absolute. As for any dimension of the right to equal treatment, and as expressed in the adjective “reasonable,” proportionality considerations provide intrinsic demarcations for these duties. Relevant factors to measure reasonableness and prevent undue burdens, undue hardship, or a disproportionate burdenFootnote 152 on the person or institution that needs to accommodate include: The actual cost of the accommodation, sources of outside—for example, government—funding, the size of the business or institution, and the duration and scope of the accommodation.Footnote 153
While this may seem straightforward in principle, in its actual application to concrete cases, the identification of relevant factors and their relative weight often proves controversial. Furthermore, it may be obvious that in relation to some grounds, the controversies will, by definition, be higher—for example, when pertaining to religious accommodation in the public space or regarding different ways of life of ethnic minorities. This varying degree of inherent controversy may explain why the EU legislature has only been willing to engage with duties of reasonable accommodation in relation to “disability.”Footnote 154 It is clear that in the lengthy negotiations—since 2008—of the Commission proposal for a new Equality Directive,Footnote 155 duties of reasonable accommodation remain reserved for the grounds of disability.Footnote 156
The CJEU’s jurisprudence on disability presents thorny issues concerning judicial interpretation. Although there has been some case law on reasonable accommodation,Footnote 157 so far there is scant case law that assists in demarcating reasonable from unreasonable accommodations. The underlying proportionality considerations may indeed require a case-by-case analysis, and hopefully future case law of the CJEU will provide some more generalizable markers as well. This case law on duties of reasonable accommodation is bound to sharpen the view on duties of differential treatment, the second leg of the principle of EU law on equal treatment.Footnote 158 As the latter concept is generally applicable across the EU grounds of discrimination, it remains to be seen to what extent the CJEU might steer towards de facto duties of reasonable accommodation on the other grounds. The Court has thus far not been forthcoming in this respect, particularly as it concerns the grounds of religion.
D. Conclusions
The density of instruments dedicated to the prohibition of discrimination at both a global and a regional level—and their increasing detail—have made this norm one of the most developed and refined human rights. In this respect, the 2000 EU Equality Directives mark the birth of EU anti-discrimination law as a self-standing area. Despite all of the numerous pitfalls, this EU law offers one of the highest ceilings of protection in comparative anti-discrimination law. In this Article, we have tried to identify the major themes in the recent discussion on the EU equality framework and to summarize how various grounds of equality “beyond gender” have been interpreted at the level of the Court of Justice. Through this exploration, we aspire to show the modes in which social movements and individuals can further capitalize on the available resources of EU anti-discrimination law. If anything, an effective protection against discrimination has only become more pressing during multiple ongoing crises, namely, the economic crisis, the refugee crisis, and the backsliding on the rule of law. EU anti-discrimination law has, thus, reached its age of maturity—its eighteenth birthday—in confusing times, which nonetheless carry huge potential. This area of law remains a vivid justification for viewing the Union today as not only concerned with economic interests, but embracing a wider ethos of equality emanating from EU law to Member States, even in wholly internal situations.
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