“SPILL-OVER” EFFECTS OF NONDISCRIMINATION ON CIVIL LAW?

The concept of non-discrimination, also called “equal treatment”, plays an important role in Union law, and has in many cases decided by the Court of Justice of the EU been understood as a general constitutional principle. As regards the economic law of the Union, market subjects should be treated as equals if they are in a comparable situation, or conversely, law should not impose equal treatment on them if they are in different situations, unless such this difference is objectively justified. The Codorniú case provides us with an example. The Court invalidated a Community regulation forbidding Spanish producers from using the traditional term crémant by reserving it to French and Luxembourg producers of sparkling wine. The measure was held to violate the principle of non-discrimination because Spanish producers were without justification put on an unequal basis relative to other producers.

Over time EU non-discrimination law, apart from the distinctly market-orientated approach, has also taken on a social dimension by including within its ambit the struggle against discrimination based on gender, race, ethnic origin, age, disability or sexual orientation. This development is part of a more general trend in fundamental rights in the EU.

Article 21 on “non-discrimination” of the Charter of Fundamental Rights, which became formally part of EU law after the Lisbon Treaty was ratified, but which had guided the ECJ in its interpretation and application of Community law beforehand, reads: